Page 111 - Communication Processes Volume 3 Communication Culture and Confrontation

86 Karine Bates

exclusive jurisdiction over matters enumerated in List II of the Seventh
Schedule. The Union and the states have concurrent power over mat-
ters in List III of the Seventh Schedule. Personal or customary laws in
List III govern matters such as marriage, divorce, adoption, intestacy,
succession, joint family and partition. Consequently, personal laws
applicable to Hindus in one state need not necessarily be applicable
to Hindus in other states.
The Fundamental Rights enjoined the government to be indifferent
to particularistic and ascriptive characteristics such as race, religion,
caste, place of birth and sex while dealing with citizens. The founders of
the independent state were greatly influenced by Western legal philoso-
phy and institutions. The most discussed borrowed legal concept has
been equality. Among the three most important Fundamental Rights
made available to all citizens by the Constitution are: equality before
the law (Article 14), the prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth (Article 15) and equality of
opportunity in matters of public employment (Article 16). Although the
principle entrenched in the Constitution may be inspired by a Western
concept of ideology associating equality with individualism, the concep-
tion of equality in India may be different. For example, the framer of
10
the Constitution, Ambedkar, spoke strongly in support of the individual,
but he also pleaded for the recognition of the special claims of certain
groups. Indeed, the Constitution gave special rights to specific groups,
such as the Scheduled Tribes and Castes. According to Ambedkar,
‘What was at issue was not simply equality as a right available to all
individuals but also equality as a policy aimed at bringing about certain
changes in the structure of society’ (Béteille 1986: 126).
This differs from the more individualistic view of the Western
concept of equality. The same makers of the Constitution refused to
have one civil code by which women could enjoy equal rights within the
family because the code might then interfere with the religious rights
of various communities. This is what the British rulers said when they
refused to have one civil code for India. A uniform civil code does not
exist in India even today, which means that women and men are under
different legislation according to their religion.
In addition to variation among religion, some laws can differ from
one state to the other. It is difficult at present to identify the specificity
of the legal system of Maharashtra after independence. This is partly